Wetlands protection basics for compatible development

Friday

Feb 22, 2013 at 5:17 PM

Wetlands are a vital and valuable resource to our communities. In the Commonwealth of Massachusetts we legislatively recognize the importance of protecting wetlands. The most powerful tool for protecting wetlands is the Massachusetts Wetlands Protection Act (Act) and the regulations promulgated there under.

Michael A. Kehoe, Esq.

Wetlands are a vital and valuable resource to our communities. In the Commonwealth of Massachusetts we legislatively recognize the importance of protecting wetlands. The most powerful tool for protecting wetlands is the Massachusetts Wetlands Protection Act (Act) and the regulations promulgated there under.

The Massachusetts Department of Environmental Protection (MDEP) is responsible for the enforcement of the Wetlands Protection Act and the regulations. However, in most instances developers first meet with and apply to the local agencies responsible for enforcing this Act and its accompanying regulations. Traditionally these agencies are called Conservation Commissions. Some communities within the Commonwealth have their own conservation bylaws. The scope of this article is limited to the Massachusetts regulations. The responsible developer should, however, consult the appropriate Conservation Commission agent in the municipality of the project for site specific regulations.

The prudent developer often asks, before commencing any activity, will any of the work proposed in this project impact a jurisdictional wetlands area or is the project otherwise within the Act? The first place to seek the answer is the local Conservation Commission agent. That is usually followed up with a request for determination of applicability. Upon receiving the request for determination of applicability, the Conservation Commission must schedule a public meeting within 21 days. After the public hearing, the Commission has 21 days to make its determination. In most instances, however, the determination is made at the public meeting. If the Commission makes a negative determination, it is saying that the project is not subject to regulation under the Act. In that instance, and after the 10 day appeals period, the developer may begin work without a permit from the Conservation Commission.

A positive determination, however, indicates that the proposed work is subject to regulation under the Act and will require a permit from the Conservation Commission. This requires the applicant to file a Notice of Intent with both the Conservation Commission and the Massachusetts Department of Environmental Protection. Traditionally, the Notice of Intent contains sufficient supporting material to allow the Commission members and the public to evaluate the proposed work and its impact on the wetlands. In most instances, the Notice of Intent is prepared by a qualified engineer. It is advisable that an engineer be retained on these projects and that an engineer, at the very least, prepare the materials supporting the Notice of Intent. The Commission must schedule a public hearing within 21 days from receipt of the application. The Commission may request a continuance if it needs more information. The continuance cannot be continued beyond 21 days from the date of the first public hearing without written permission of the applicant. The Commission has 21 days to issue or deny a permit for the work. If the Commission decides that the proposed work does not meet the requirements of the Act or regulations, it will deny the permit. This decision may be appealed by the applicant. If the Commission decides that the proposed work will not endanger the wetlands as long as the work proceeds subject to the conditions outlined by the Commission, it will issue an Order of Conditions. This is the conservation "permit." As with the request for determination of applicability, there is a 10 day appeals period before work may proceed.

The smart and successful real estate developer will engage a competent engineer or engineering firm at the outset of the proposed project. It is also vital to have competent local counsel as part of the team. Competent local counsel will have familiarity with the Act and the regulations, and equally important, with local bylaws and ordinances. Here at Partridge Snow & Hahn LLP we welcome the opportunity to serve our real estate clients and be a productive member of their development teams.

Michael A. Kehoe is a partner of the firm and member of the Real Estate Group. He has extensive experience in both complex residential and commercial land development and construction projects. Contact him at mak@psh.com.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.